Citation Nr: 1308068
Decision Date: 03/11/13 Archive Date: 03/20/13
DOCKET NO. 07-31 156 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania
THE ISSUES
1. Entitlement to service connection for a low back disorder.
2. Entitlement to service connection for a right leg condition.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
B. R. Mullins, Counsel
INTRODUCTION
The Veteran had active service from February 1972 to March 1972.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. The Veteran's claims file was subsequently transferred to the RO in Pittsburgh, Pennsylvania.
In April 2011, the Board denied the claim of whether new and material evidence had been submitted to reopen a claim of service connection for hypospadias with urethral fistula. The remaining issues currently on appeal were remanded for further evidentiary development.
The Veteran presented testimony before a Decision Review Officer (DRO) at the RO in November 2007. A written transcript of this hearing was prepared and incorporated into the claims file.
FINDINGS OF FACT
1. The Veteran's low back disability did not manifest during, or as a result of, active military service.
2. The Veteran has not been diagnosed with a current disability of the right lower extremity that manifested during, or as a result of, active military service.
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CONCLUSIONS OF LAW
1. The criteria for establishing entitlement to service connection for a low back disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012).
2. The criteria for establishing entitlement to service connection for a right leg condition have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duty to Notify
VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).
Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).
In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486.
Previously, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the failure to provide pre-adjudicative notice of any of the necessary duty to notify elements was presumed to create prejudicial error. Sanders v. Nicholson, 487 F.3d 881 (2007). VA was required to show that that the error did not affect the essential fairness of the adjudication, and that to make such a showing the VA had to demonstrate that the defect was cured by actual knowledge on the claimant's part or that a benefit could not have been awarded as a matter of law. Id. However, the United States Supreme Court (Supreme Court) recently held this framework to be inconsistent with the statutory requirement that the CAVC take "due account of the rule of prejudicial error" under 38 U.S.C.A. § 7261(b)(2). Shinseki v. Sanders, 556 U.S. 396 (2009). In reversing the Federal Circuit's decision, the Supreme Court held that the burden is on the claimant to show that prejudice resulted from the error, rather than on VA to rebut a presumed prejudice. Id.
Letters sent to the Veteran in February 2006, December 2006 and April 2007 addressed all notice elements listed under 3.159(b)(1) and the 2006 letters were sent prior to the initial RO decision in this matter. The letters informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b).
Duty to Assist
Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service treatment records. Also, the Veteran received a VA medical examination in May 2011, and VA has obtained these records as well as the records of the Veteran's outpatient treatment with VA. Copies of the Veteran's Social Security Administration (SSA) records have also been incorporated into the claims file. Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for fair adjudication of the claim that has not yet been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Additionally, the Board finds there has been substantial compliance with its April 2011 remand directives. The Board notes that the Court has held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand). The record indicates that the Appeals Management Center (AMC) attempted to obtain private treatment records from Montefiore Hospital for the period from April 1972 to January 1978. However, VA was notified in June 2012 that there were no records available for this Veteran. The Veteran was also scheduled for a VA examination which he attended in May 2012. The AMC later issued a Supplemental Statement of the Case (SSOC). Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders).
Relevant Laws and Regulations
Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).
In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).
To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)).
Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as arthritis, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309 (2012).
Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence).
Low Back Disorder
The Veteran contends that he is entitled to service connection for a low back disorder. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran's current low back disorder did not manifest during, or as a result of, active military service. As such, service connection is not warranted.
The Veteran's service treatment records do not reflect that he suffered from a chronic disorder of the low back during active military service. According to a March 1972 in-service treatment record, the Veteran was complaining of low back pain since that morning. The Veteran was found to have full range of motion with moderate tenderness. A diagnosis of muscle strain was assigned. The record does not contain a separation examination for this Veteran.
The next evidence of symptomatology associated with the low back of record is a May 2006 VA outpatient treatment record. This is approximately 34 years after the Veteran's separation from active duty. The record reflects that the Veteran was seen in April 2006 for back pain after heavy lifting. Specifically, the Veteran was lifting a heavy box of canned goods from the floor when he experienced right sided back pain. It was noted that the back pain had since improved, but the right inner thigh still hurt when walking up stairs. The Veteran was diagnosed with back pain and leg pain due to heavy lifting and there was no mention of a previous history of back pain since military service more than 30 years earlier.
According to an X-ray taken in April 2006, the vertebral bodies appeared unremarkable with normal intervertebral spacing. There was no compression fracture or spondylolisthesis present and it was determined that the lumbar spine was unremarkable.
The record also contains a magnetic resonance image (MRI) from May 2007. This revealed minimal degenerative disc disease at L3-4, without progression to disc protrusion/extrusion and without evidence of any nerve impingement. At least mild bilateral facet arthropathy at L5-S1, without evidence of complicating spinal stenosis, was also assigned.
Finally, the Veteran was afforded a VA examination of the lumbar spine in May 2011. The Veteran reported that he first started having back pain during basic training in the 1970s. He denied any specified injury. The Veteran further reported that since getting out of service he had never been able to work or do anything and that he had been on disability since that time. However, he was able to perform his activities of daily living under normal circumstances. Radiographs revealed very minimal osteophytosis at the L3-4 disc space and "very, very mild" degenerative disc disease. The remainder of the X-rays appeared normal. The Veteran was diagnosed with very mild degenerative disc disease with no evidence of radiculopathy.
The examiner opined that the Veteran's low back disorder did not manifest during, or as a result of, active military service. The examiner explained that the Veteran basically never worked since leaving service secondary to subjective reports of back and leg pain. However, the minimal amount of degenerative disc disease witnessed upon examination was consistent with aging. The examiner explained that this level of degeneration would be expected in any man of the Veteran's age and the examiner did not feel that it had anything to do with his subjective reports of pain. The examiner did not see anyway, just through the course of basic training with no specific injury, that this would lead to current complaints of pain.
The preponderance of the above evidence demonstrates that the Veteran is not entitled to service connection for a low back disorder. While the Veteran was noted to have a low back strain in March 1972, the evidence of record fails to demonstrate that this resulted in a chronic disability. The first evidence of low back pain of record is from April 2006 - more than 3 decades after the Veteran's separation from active duty. When considering whether or not to grant a claim for service connection, the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact, i.e., the lack of evidence is itself evidence). In the present case, the absence of any treatment or complaints regarding the low back for more than 30 years after separation from active duty tends to establish that this disability has not existed since military service. Finally, the VA examiner opined that there was no relationship between the Veteran's current low back disorder and military service. The examiner explained that the Veteran had very mild degeneration that would be expected in any man of his age. Furthermore, the Veteran denied any specific injury during military service and the examiner could see no way in which current complaints of pain were due to general basic training. As such, the preponderance of the evidence of record demonstrates that the Veteran is not entitled to service connection for a low back disorder.
The Board recognizes that the Veteran informed the VA examiner that he had suffered from chronic low back pain since his separation from active duty. The Veteran also suggested that he had a long history of back pain during his November 2007 hearing. While the Board has considered these assertions to be competent, it does not find them to be credible. Here, the Veteran asserted to the VA examiner that his back pain first manifested during basic training. However, according to the March 1972 treatment record, which was prepared the month of the Veteran's separation from active duty, his back pain began that morning. Moreover, an April 2006 record clearly notes that the Veteran experienced back pain after heavy lifting in April 2006. It seems highly unlikely that when seeking treatment in 2006, the Veteran would have indicated that his back pain began the previous month and omitted the fact that he had been suffering from a chronic back disability for more than 30 years. It was not until the Veteran filed a claim for monetary compensation that he began to assert the existence of low back symptomatology since military service. Pecuniary interest in benefits may affect the credibility of a claimant's testimony. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). As such, the Board does not find the Veteran's recent assertions of chronic symptomatology since basic training in service to be credible.
Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for a low back disorder must be denied.
Right Leg Condition
The Veteran contends that he is entitled to service connection for a right leg condition, to include as secondary to a nonservice-connected low back disability. However, as outlined below, the competent evidence of record demonstrates that the Veteran does not suffer from a chronic disability of the right lower extremity. As such, service connection cannot be established.
The Veteran's service treatment records are silent regarding a right leg condition or any symptomatology of the right leg. Likewise, post-service evidence fails to establish that the Veteran suffers from any diagnosed disability of the right lower extremity that manifested during, or as a result of, active military service. The first evidence of right leg pain is a May 2006 VA treatment record. As already discussed, this is approximately 34 years after the Veteran's separation from active duty. The Veteran was seen with complaints of back pain after heavy lifting. Specifically, the Veteran was lifting a heavy box of canned goods from the floor when he experienced right sided back pain. It was noted that the back pain had since improved, but the right inner thigh still hurt when walking up stairs. The Veteran was diagnosed with back pain and leg pain due to heavy lifting and there was no mention of a previous history of right leg pain since military service more than 30 years earlier.
The record contains no further evidence of treatment for right leg symptomatology. The Veteran was afforded a VA examination in May 2011. The Veteran reported that he began to develop right leg pain during basic training and that it had existed since this time. However, examination revealed no evidence of a current right leg condition, to include radiculopathy from the Veteran's nonservice-connected lumbar spine disability. The examiner further explained in a June 2011 addendum that the examiner saw no leg diagnosis that could be provided. There was no objective evidence to explain the Veteran's pain. The examiner concluded that the Veteran basically had subjective complaints only which did not fit with any type of pathology.
The preponderance of the above evidence demonstrates that the Veteran is not entitled to service connection for a right leg condition. There is no medical evidence of such a condition during active military service, and the first evidence of right leg symptomatology was due to lifting a heavy object in April 2006. As determined by the VA examiner, there is no objective evidence of a current disability of the right lower extremity. There must be a current diagnosis of a disorder for service connection to be granted. Hickson v. West, 12 Vet. App. 247, 252 (1999). Without a medical diagnosis of a right leg condition, the Board must deny the Veteran's claim. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation).
The Board recognizes that the Veteran believes he is entitled to service connection for a right leg condition. However, the evidence of record does not reflect that the Veteran is competent to diagnose himself with a specific disability. When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). In the present case, there is no evidence to suggest that the Veteran has the requisite training or expertise to diagnose a specific disability. While the Veteran is certainly competent to testify to symptoms of pain, pain alone is not a disability for VA compensation purposes. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). As such, the Veteran's statements fail to demonstrate that service connection for a right leg condition is warranted.
Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for a right leg condition must be denied.
ORDER
Service connection for a low back disorder is denied.
Service connection for a right leg condition is denied.
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DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs